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Cite as: [2007] ScotCS CSIH_78, [2007] CSIH 78

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Osborne

Lord Kingarth

Lord Wheatley

[2007] CSIH 78

XA110/06

OPINION OF THE COURT

delivered by LORD KINGARTH

APPLICATION FOR LEAVE TO APPEAL

under section 37(1) of the Employment Tribunals Act 1996

IAN KERR

Applicant;

against

ABERDEEN CITY COUNCIL

Respondents:

_______

Act: Party (Applicant)

Alt: Clelland; Brodies (Respondents)

2 November 2007

[1] By decision dated 8 March 2005 an Employment Tribunal sitting at Dundee ("the Tribunal") decided that the applicant, a teacher at Hazelhead Academy, Aberdeen, had been dismissed within the meaning of section 95(1)(c) of the Employment Rights Act 1996 ("the 1996 Act") (in so far as he terminated his employment, by notice of resignation given on 22 December 2003, in circumstances where he was so entitled by reason of his employer's conduct) and that the dismissal was unfair. In respect of remedy the Tribunal nevertheless found, inter alia, under reference to sections 122(2) and 123(6) of the 1996 Act that he had, by his conduct, contributed to his dismissal to such an extent that it would be just and equitable that no compensation should be payable to him. The Tribunal sat over eight days. Evidence was heard from witnesses on six days in August 2004, and on 22 November 2004. The final day of the hearing was on 7 February 2005. At all times the applicant was represented by a solicitor.

[2 ] The applicant, aggrieved by the Tribunal's decision in relation to remedy, appealed to the Employment Appeal Tribunal ("the EAT"), to whom an appeal lay on any question of law under section 21 of the Employment Tribunal Act 1996. Under and in terms of Rule 3(7) of the Employment Appeal Tribunal Rules 1993, the EAT - after inter alia an oral hearing before Elias J (President) on 12 May 2006 under Rule 3(10) - declined to hear the appeal, on the basis that neither the original notice of appeal nor a substituted notice of appeal disclosed reasonable grounds for bringing the appeal. Reference may be made to letters to the applicant dated 10 June and 21 October 2005, and to two written judgments of the President, the last one dated 15 June 2006. On 12 June 2006 leave to appeal to the Court of Session under section 37(1) of the Employment Tribunal Act 1996 (which provides for appeal, with leave, on any question of law) was refused by the EAT. The applicant now seeks leave to appeal direct from this court under said section 37(1).

[3 ] In support of his application before us he advanced a number of detailed written grounds of appeal (13 in number, contained in the document headed "Amended Grounds of Appeal"), although in argument before us he expressly abandoned grounds numbered 1, 2, 6 and 13. In order to understand a number of the submissions he made to us it is necessary to rehearse the decision of the Tribunal in some detail.

[4 ] The Tribunal's main findings in relation to the question of whether the applicant was unfairly dismissed are set out at paragraphs 5 to 24 of the decision as follows:

"5. ... The claimant commenced employment with the respondents as a teacher of mathematics on 23 August 1993 and worked at Hazelhead Academy until his employment was terminated on 30 January 2004.

6. In around February 2003 whilst marking preliminary exam scripts for

the higher mathematics class the claimant perceived there to be a number of discrepancies and errors in the markings of papers marked by his colleague Gwen Johnston. The claimant marked the errors and discrepancies with post-it stickers and gave them to the head of department Mr J Cameron. Mr Cameron asked the claimant to speak to Mrs Johnston himself. The claimant refused and demanded that Mr Cameron check them. Mr Cameron took the scripts and passed them to Mrs Johnston for checking. Mrs Johnston looked through the scripts and returned them to Mr Cameron indicating a willingness to accept the claimant's comments. The claimant was not satisfied with the outcome. He was dissatisfied about what he described as the 'twelfth script'. This was a reference to one of the twelve scripts which he had handed to Mr Cameron. He intimated his dissatisfaction to Mr Cameron. Mr Cameron advised that the marks would remain unchanged. The claimant accused Mr Cameron of pulling rank.

7. The claimant took no further steps in relation to the exam scripts until May 2003.

8. On or about 27^th May the claimant was involved in what he called an

'incident' involving Mrs Johnston. As a result of that incident he determined to take the matter regarding the marking of the preliminary exam papers further. He took his criticisms of Mrs Johnston's marking to Mr Wood, the Rector. As a result Mr Wood spoke to Mrs Johnston. He wrote a report dated 3 June 2003 (R50 pages 97 and 98). That report was the result of an investigation into the incident between the claimant and Mrs Johnston on 27 May 2003. In his conclusions Mr Wood states:

'It is clear to me that relationships between Mr Kerr and Mrs Johnston have deteriorated considerably since the difficulties encountered in staffing the mathematics trip to Paris in February and I am concerned that this might adversely affect the work of the mathematics department. Mr Kerr is convinced that Mrs Johnston played a significant role in persuading Ms McLean to withdraw from the trip. Whether or not that is the case Mr Kerr has begun to compile a list of his observations of what he regards as professional shortcomings on Mrs Johnston's part. In particular Mr Kerr drew to my attention flaws he had identified in Mrs Johnston's recent marking of examination papers. I had Mr Cameron investigate these. Mr Cameron satisfied himself and me that there was no undue cause for worry. Mr Kerr told me that he felt he had been treated shabbily.

I have spoken both to Mr Kerr and Mrs Johnston about my concerns and that whatever their differences I expect them to behave professionally towards each other and to co-operate in all matters relating to the work of the mathematics department. They have both agreed to do this. Mrs Johnston stated that she would welcome the opportunity to meet with Mr Kerr and myself to discuss matters openly and hopefully to come to some resolution. I conveyed this invitation to Mr Kerr. Mr. Kerr rejected this opportunity and stated that he had taken legal advice and intended to pursue matters in court.'

Mr Wood formed the view that the claimant was suffering from stress and advised him of the respondents' counselling service.

9. The written findings of Mr Wood's investigations were copied to

Mr Kerr and to Mrs Johnston. The next time the claimant saw the Rector he accused the Rector of 'covering up'. The claimant felt aggrieved. He opened the locked cabinet containing examination papers and removed a number of these.

10. The claimant had previously had professional dealings with Mrs A

Darling, the Area Education Officer and contacted her by telephone. She asked him to put any complaints he had in writing.

11. On 6 June the claimant separated two students who were fighting. He

escorted one to the Rector's office. The other escaped. As a result of his intervention the claimant claimed that he injured his finger.

12. The claimant went off sick at around that time. Whilst off sick he

determined to put his criticisms in writing. This he did on 23 June 2003 (R51 pages 99 to 103). In that letter he complained that his previous criticisms had not been properly investigated. He made a number of extremely critical observations regarding Mrs Johnston. He lists his complaints as follows:-

'(1) How I injured myself in the workplace and my view of the reasons why this took place.

(2) The stress caused in the workplace as a result of a fractured, fragmented, punctured and discontinuous executive.

(3) My job description as a mathematics teacher at Hazelhead Academy.

(4) My job description as a mathematics teacher at Hazelhead Academy relative to others in the mathematics department.

(5) How my job description and the job description of others in the mathematics department relate to the development plan.

(6) A detailed discussion of the contents of the recent letters I have sent to the Rector of Hazelhead Academy.

(7) My future employment with Aberdeen City Council.'

At no point in that letter did he direct Mrs Darling's attention specifically to the detail of his complaints regarding the marking of the examination scripts.

13. Also by letter dated 23 June 2004 (pages 105 to 123) the claimant

wrote to Mr Wood. In that letter he complained that there was a witch hunt against him. He made further complaints about Mrs Johnston stating that she disrupted the educational process 'for her own selfish and deceitful ends'.

14. He made reference to an incident involving Mrs Johnston in May 2003.

In general the terms of that letter to Mr Wood were disparaging, unpleasant, personal and not constructive. He carried out a direct comparison of his own employment circumstances with those of Mrs Johnston. He accused Mrs Johnston of doing little whilst he considered himself to be hardworking and industrious.

15. Upon receipt of that letter Mr Wood passed it to Mrs Darling.

16. The claimant deliberately held back his medical sickness certificate

submitting it in time for school starting. On 15 August the claimant telephoned Mrs Darling. He asked for a meeting. A meeting then took place on 18 August. The claimant attended with a witness. Mrs Darling was present with Mr Capstick from the Human Resources Department. During that meeting the complainant complained that Mr Cameron had failed properly to conduct an enquiry into the discrepancies regarding the exam papers. Mrs Darling asked the claimant for any papers he held. The claimant refused to hand over papers saying that he wished to take his complaint to the Scottish Qualifications Authority. The meeting on the whole was extremely heated. Mrs Darling found the claimant's behaviour at the meeting to be aggressive. He made disparaging remarks concerning Mrs Johnston. At that meeting Mrs Darling agreed to investigate the following complaints:-

1. That there was a 'marking scam' in operation in the mathematics department in relation to the higher prelim examinations.

2. That once identified, the matter was 'covered up' by the principal teacher of mathematics.

3. That when he made a further complaint to Mr Wood the matter was not dealt with to Mr Kerr's satisfaction.

4. That Mr Kerr's involvement in an event and alleged incident in which he sustained an injury to his fingers resulted in an exacerbation of his osteoarthritis.

17. Mrs Darling interviewed Mr Wood, Mr Murray, deputy head teacher

and Mr Cameron. As a result of her interviews, and in particular that of Mr Cameron, Mrs Darling formed the view that the papers had been marked appropriately. She further formed the view that the incident in which the claimant injured his finger had been properly dealt with.

18. She then suffered a bereavement in her family and went off sick.

19. During the period of Mrs Darling's sick leave no steps were taken by

the respondents to conclude the investigation which she had begun. Upon returning to work in November she reported to her line manager Mrs Landels. It was agreed that Mrs Fenton would investigate Mr Kerr's other complaints. These complaints were:-

'The issue of health and safety around security in Hazelhead Academy specifically about one parent's easy access to the school.

The issues about lack of supervision on coaches transporting pupils on an outing in 2001 and 2002 and about the deployment of staff during those outings.

The issue about implementation of the school's development plan, about the claimant's role and workload relative to the workload of other teachers.'

20. Mrs Fenton met with the claimant and his witness on 24 November.

The purpose of meeting the claimant was to try to better understand his complaints. As a result of that meeting Mrs Fenton visited Hazelhead Academy on 4 December and made a return visit on 5 December. She spoke to the organisers of the school outing complained of and took statements. As a result of her investigations she reached a conclusion regarding the claimant's complaints and wrote to him on December 18 (R81).

21. Mrs Darling also concluded her investigation at around the same time

and wrote to the claimant on 12 December 2003 (R80). In that letter she indicated her rejection of the allegation of a marking scam or a cover up.

22. The respondents then indicated to the claimant that he should return

to work. The claimant refused to do so and did not return to work again. On 22 December 2003 the claimant completed the respondents' standard resignation form (R84). In that form he stated the cause of resignation as being 'Utter disgust at the acts of bad faith and dereliction of duty by Mr Wood and Mr Cameron'. He also wrote on 22 December to Mrs Landels and Mr Wood (R86 pages 240 - 308).

23. The tribunal considered the terms of section 98 of the Employment

Rights Act 1996. It found that the claimant was dismissed within the meaning of section 95(1)(c). In reaching this conclusion the tribunal had regard to the investigation into the allegation made by the claimant of a 'cover up'. In particular, the tribunal had regard to the investigation by Mrs Darling. The tribunal found that the investigation by Mrs Darling was not a thorough and fair investigation. She stated in evidence that she regarded herself as conducting a qualitative review. She was, however, unable to explain or clarify what she meant by this. It was clear from her evidence that she did not look in detail at the investigations by Mr Wood or Mr Cameron and subject the actions of Mr Cameron or Mr Wood to critical appraisal. Further, the tribunal had regard to the delay in carrying out this investigation. Whilst the tribunal was of the view that Mrs Darling was not at fault in the circumstances for that delay, the tribunal found that taking account of both the delay and the inadequacy of the investigation the claimant was dismissed.

24. In that the claimant was dismissed the tribunal found that he was

dismissed unfairly."

[5 ] In paragraphs 25 to 31 the Tribunal considered the question of remedy and reached the following conclusions:

"25. Having made these findings, however, the tribunal had regard to a

number of circumstances relevant to this case. In particular the tribunal had regard to the claimant's own demeanour and conduct as evidenced by productions and spoken to by witnesses. The tribunal found that the claimant deliberately withheld papers from Mrs Darling, being papers which he acknowledged related to the investigation she was carrying out. Further, the tribunal had regard to the extremely unprofessional and insulting language used by the claimant both in his letters of complaint to the respondents and at his meeting with Mrs Darling. The tribunal also had regard to and accepted the evidence of the Rector that he found the claimant's behaviour so disruptive and threatening that he took advice independently regarding his own position. Similarly the tribunal had regard to and accepted the evidence of Mrs Darling that she found the behaviour of the claimant so threatening that this behaviour contributed to the length of period off work.

26. In these circumstances the respondents' task of carrying out a thorough

investigation was rendered more difficult.

27. In considering the question of reinstatement the tribunal had regard to

the terms of sections 113 and 116 of the Employment Rights Act. The tribunal found that it would be unjust to order reinstatement due to the claimant's contribution to his own dismissal. For that reason the tribunal refuse the request for reinstatement.

28. Regarding an alternative remedy of re-engagement the tribunal again

had regard to the claimant's contribution to his own dismissal and found that it would not be just to order his re-engagement.

29. In considering whether to make a basic award of compensation the

tribunal had regard to the terms of section 122(2). With regards to the conduct of the claimant the tribunal considered that any basic award be reduced to nil.

30. In considering whether to award a compensatory award the tribunal

had regard to the terms of section 123(4) and (6). The tribunal found that the claimant made no attempt to find work choosing instead to devote himself to the pursuit of his various complaints against the respondents. The tribunal further found that it would be just and equitable in all the circumstances to reduce any compensatory award to nil.

31. Were it not for the aforementioned reductions the tribunal would have

awarded a compensatory award restricted to three months' wage losses (£5,248.50 net). This would be on the basis that the claimant would find work within that period. The evidence which was accepted by the tribunal was that there was considerable demand for Mathematics teachers. The claimant did not claim Job Seeker's Allowance or Income Support."

[6 ] We record, for completeness, that in the remaining part of the decision the Tribunal found no substance in a number of other complaints made by the applicant in relation to the respondents (at paragraphs 33 to 35), and indicated (at paragraph 32) that while it made no findings in fact to the effect that his criticisms generally resulted from personal antagonism towards Mrs. Johnston, it had sympathy with that view.

[7 ] The primary question, the applicant submitted (under reference to Scottish Midland Co-operative Society Limited v Cullion 1991 IRLR 261 at page 262), was whether it could be said that the Tribunal had erred in law. This, we think, was not seriously disputed by Mr. Cleland, counsel for the respondents. Before us the applicant, who was well prepared, presented his submissions carefully and, generally, in a measured way, with much reference to documentation, most of which, although not all, had been before the Tribunal. Although submissions were made at some length in support of numerous grounds of appeal, it was, we regret, apparent from an early stage that many of these were either misconceived or plainly ill-founded, and these can be disposed of relatively shortly. We leave aside for later consideration the point the applicant wished to advance under ground of appeal 3, effectively repeated in ground of appeal 12.

[8 ] Under the head of ground of appeal 4 the applicant made a number of submissions to the effect that the Tribunal had been biased against him, or at least (under reference to Lawal v Northern Spirit Limited 2003 ICR 856) that the fair-minded and informed observer, having considered the facts, would have concluded that there was a real possibility that it was so biased. The decision had already been made before submissions on the last day. In addition, on the seventh day of the hearing the applicant had produced certain documentation relevant to some evidence which had earlier been given by a witness or witnesses for the respondents about an earlier appraisal of the applicant's abilities as a teacher. Although the Tribunal allowed these productions to be lodged, and permitted the applicant to be recalled to give evidence in relation to them, the Tribunal did not insist that the relevant witnesses of the respondents (understood to be Mr. Cameron and Mr. Wood) be recalled. It was the applicant's position that a motion had been made on his behalf that they should be so recalled. Instead, the opportunity was given to the respondents to recall these witnesses if they wished, which offer was declined. The matter of the relevant appraisal was not the subject of any specific finding by the Tribunal. Further, on the last day, further additional documentation was produced by the applicant which, it was said, could have been used as a basis for leading evidence to contradict evidence given by the same two witnesses for the respondents as to the identity of the author of the "twelfth script" referred to at paragraph 6 of the decision, and thus used as a basis for proving that these witnesses had misled the Tribunal. The Tribunal, however, while allowing the documentation to be lodged, did not allow any evidence to be led in relation to them despite the applicant's motion that that be allowed. The applicant's motions on this occasion and on the seventh day of the hearing were ones the Tribunal was bound to grant - a submission made again under ground of appeal No. 7. While the Tribunal referred to a common set of productions at paragraph 4, it did not refer to the productions lodged on the last day (or to the ones lodged on the seventh day). A major part of the applicant's claim had been that Messrs Wood and Cameron sought to cover up the markings complained of. Despite recording that this was part of the claim at the outset of the decision, the Tribunal had made no specific findings in relation to this. Rule 30.6 of the Employment Tribunals (Constitution etc.) Regulations 2004 required the Tribunal to state why any issue identified as being relevant was not determined. If this issue had been determined, the general credibility of the relevant witnesses could not have been supported. Further, the decision was deficient in that no reference was made to the written submissions prepared by the parties' representatives prior to the last day's hearing or to the general fragmented nature of the hearing. Moreover it was unclear to what "demeanour and conduct" the Tribunal was referring in the second sentence of paragraph 25.

[9] We are not persuaded that these submissions give rise to any arguable error of law. There is simply no objective basis upon which we could determine that the decision had already been made against the applicant before submissions on the last day of the hearing. The decision whether to require any further witnesses to be led by the respondents in relation to the documents lodged on the seventh day was essentially one for the discretion of the Tribunal, even if a motion to that effect had been made (which was not accepted by counsel for the respondents). In the event, the applicant himself was allowed to be heard on the evidence without reply, which might be thought to have been entirely favourable to him. In any event these documents related to a matter which, although raised at some point in evidence, had not been put in issue by the respondents in their written case and which (correctly) formed no part of the decision by the Tribunal. In relation to the documents produced on the last day, it was again entirely within the discretion of the Tribunal not to allow any further evidence at that late stage, at a hearing convened apparently to hear oral submissions. In paragraph 4 of the decision the Tribunal was, it seems, accurately recording simply that a common set of productions had been lodged at the outset. While it is true that part of the applicant's claim at the outset apparently was that there had been a cover-up, it is also clear from the written submissions made on behalf of the appellant at the end of the hearing that "the principal grounds on which the applicant seeks to establish this remedy is in relation to the way in which a complaint made by the applicant against Mr. Brian Wood ... was handled", a point clearly emphasised and summarised in the last paragraph of these submissions, which effectively called upon the Tribunal to consider the quality of Mrs. Darling's "investigation". In these circumstances it is not surprising (and reasonably apparent from the decision itself) that the Tribunal at the end of the hearing regarded this as the material issue for determination. It was, in the event, decided in favour of the applicant. In any event, the Tribunal made certain findings in relation to the handling of the complaint prior to the involvement of Mrs. Darling, at paragraphs 6 to 9. We do not consider it to be arguable that it was in breach of Rule 30.6, which, it has been said, is a guide and not a straightjacket (Balfour Beattie Power Networks Limited and Another v Wilcox & Others 2007 IRLR 63). Nor can it be said that the Tribunal was under an obligation to refer to every piece of evidence which could affect credibility. Nor do we see any basis for the suggestion that the Tribunal required to refer in detail to the written submissions, or to the way in which the hearing was generally conducted. Further, we think it reasonably clear that in the second sentence of paragraph 25 the Tribunal was referring to a general conclusion of which greater specification is given immediately thereafter in the same paragraph. Finally, from none of the matters referred to above (whether looked at singly or cumulatively) can it be concluded that the Tribunal was, or could reasonably have been thought to have been, biased.

[10] The applicant further submitted, under reference to ground of appeal 5, that it could be shown that a document lodged by the respondents before the Tribunal and which bore to be a letter from them to him dated 28 January 2004 (and which referred to certain allegations relating to his conduct which the respondents had decided not to pursue in view of the notice he had given to terminate his employment with effect from 30 January 2004) was not in fact sent on that date, but was sent later, and undated, shortly before 19 February 2004. We were referred to an undated document in his possession as being the letter which was sent to him. This had been a deliberate attempt to mislead the Tribunal, to support the respondents' claimed position as at 30 January 2004.

[11 ] The applicant, however, accepted before us that the respondents' document dated 28 January 2004 was not referred to at any stage in evidence before the Tribunal, and that although Ann Landels, the author of the letter, gave evidence, she was not asked about it at all, far less cross-examined about its date. He accepted that the undated document had at all times been in his possession. Nor was the document lodged by the respondents referred to at any stage in the decision of the Tribunal. In these circumstances we consider that no proper basis has been presented for allowing the applicant to lead new evidence in relation to this matter. We see no reason to doubt the soundness of the same conclusion reached by Elias J at paragraph 6 of his first written judgment.

[12 ] Under reference to grounds of appeal 8 and 9, the applicant challenged the acceptance by the Tribunal (at paragraph 25) of Mrs. Darling's evidence that she found the behaviour of the applicant so threatening (apparently at a meeting on 18 August 2003) that this contributed to her period off work. The appellant submitted that this finding contravened the best evidence rule, the primary evidence being minutes which would have been taken of the meeting. Further, he submitted that the finding (and the inference that this interfered with her investigation) was perverse. It was, he submitted, possible to demonstrate (at least in part from evidence and documents before the Tribunal, including, in particular, a letter from Ann Landels to him dated 7 November 2003) that Mrs. Darling was not off work for any length of time until early October 2003, and that her investigation was by then completed.

[13 ] We see no substance in these submissions. The finding in question was based on oral evidence which was, in the circumstances, primary evidence. Further, the applicant was not able to say that that evidence had been challenged. And it is clear that Mrs. Darling did not complete at least the written part of her investigation until 12 December 2003 when she reported to the applicant. In these circumstances it is not possible to say that the Tribunal's finding was perverse.

[14 ] Under reference to ground of appeal 10, the applicant submitted that the Tribunal had misdirected itself in seeking to reduce compensation on the basis, inter alia, of acceptance of evidence that the Rector found the appellant's behaviour so disruptive and threatening that he took advice independently regarding his own position. Under reference to a document dated 29 March 2004 - apparently at the hand of Mr. Wood - the applicant noted that it was there recorded that Mr. Wood requested a meeting with Mr. John Gray, the local secretary of the SSTA, on 25 March 2004, and submitted that it could be inferred from the context that the reason he did so did not relate at all to any conduct prior to the appellant's dismissal. Only conduct prior to dismissal could be considered. Reference in particular was made to the terms of section 123(6) of the 1996 Act.

[15 ] We have some doubt as to the status of the document to which we were referred and considerable doubt about the inference sought to be drawn from it. It is, however, enough to say that we are not persuaded that it can be said to be clear that the Tribunal's finding (in so far as it referred to advice being sought) referred to that particular occasion (and, as we understood it, counsel for the respondents disputed that the evidence given was so restricted).

[16 ] Under reference to ground of appeal 11 the applicant submitted that the finding, at paragraphs 16 and 25, that the appellant withheld papers was perverse. It could not be said that he had "withheld" anything, when the position was that he was asked to hand over what he had or to make a complaint under the respondents' whistle blowing procedures (as recorded in Mrs. Darling's letter to him dated 12 December 2003), when he had retained photocopies only and where the respondents would have known what he was relying on.

[17 ] Again, however, we are quite unable to say that this was a finding which could be said to have been perverse. The fact that the applicant was offered an alternative course of action or that he retained copied documents only, does not mean that it was not open to the Tribunal to conclude that he had withheld documentation. It is, moreover, not accepted by the respondents, or apparent from the letter dated 12 December 2003, that the respondents knew what he had.

[18 ] The submission made by the applicant under reference to grounds of appeal 3 and 12 did, however, appear to us to raise a matter of real potential substance. This - made with sufficient force as to suggest it was perhaps the applicant's main concern - was to the effect that he had been denied a fair hearing, and in particular denied any opportunity to deal with the question of remedy, including the question of any potential contribution by him to his dismissal. In the course of his address on the first two days of the hearing his position was that in preparation for the hearing on the last day both he and his solicitor thought that the whole question of remedy would be dealt with at a later stage and after the question of whether he had been unfairly dismissed had been determined. This, they understood, had been the procedure followed not long before in what he described as a parallel local case in which a teacher had successfully claimed unfair dismissal and where the question of the merits and remedy were clearly separated. Although, in preparation for the hearing, written submissions were prepared on his behalf, these did not refer to the question of remedy at all. Nor did the written submissions prepared on behalf of the respondents refer to the question of remedy (as was accepted before us by counsel for the respondents). At the hearing there were no oral submissions or discussion of the matters referred to at paragraphs 25 and 30 of the Tribunal's decision. Although he accepted that he had asked his solicitor to place before the Tribunal a letter dated 19 November 2004 from Angus Council to him, which appeared to confirm that he had made enquiries about coming onto their supply list as a maths teacher, and which letter was designed to indicate that he had attempted to mitigate his loss, (an acceptance which perhaps sat uneasily with his position that he had no reason to anticipate that the question of remedy would be dealt with at all) - this nevertheless had been ignored by the Tribunal. He referred to Land Securities Trillium Limited v Thornley 2005 IRLR 765, Slaughter v C. Brewer & Sons Limited 1990 ICR 730 and Mercia Rubber Mouldings Limited v Lingwood 1974 ICR 256. In particular reference was made to pages 738 and 739 of Slaughter v C. Brewer & Sons where the Employment Appeal Tribunal said, inter alia,

"There is however one further ground of appeal which requires our attention. It seems to be somewhat prevalent and it is that the industrial tribunal gave its decision on 'contribution' at the same time as giving its decision on liability and without hearing argument on that issue. This problem was recognised by the National Industrial Relations Court as long ago as 1974 ... Those representing parties should know that a tribunal may well be taking the course of deciding contribution at the same time as liability and be ready to argue the issues, but there may be some room for misunderstanding. Where parties appear in person then they may not know the usual procedures. Thus, a representative may well address the Tribunal only on liability. It is difficult to know how best this problem can be handled, but it is important for chairmen of tribunals to know that it exists".

[19] We would only add that the applicant also criticised the Tribunal's decision to have an oral hearing at all, having apparently originally decided that the matter should be dealt with by written submissions. This criticism, however, was only faintly insisted upon, and we say no more about it.

[20 ] In response (and on the third and last day of the hearing before us, which took place some three months after the first two days) Mr. Cleland accepted that if the applicant's submissions as to what had taken place were accepted as reliable, it could readily be concluded that he had not had a fair hearing. His position, however, was that parties and their agents were well aware that the Tribunal intended to deal with the question of remedy, including any question of potential contribution, at the same time as the question of liability; that this would be raised at the final hearing and that, in the event, much of the time at that final hearing was spent in relation to these matters. Prior to his address to us counsel lodged (with leave of the court, the applicant ultimately not objecting) handwritten notes (extending to some 81/2 pages) said to have been taken on the final day of the hearing by the solicitor for the respondents, together with a typed transcript of these notes ("the transcript"). It is clear, counsel submitted, from a number of passages of the transcript, that the question of remedy, including the question of potential contribution, had been raised and discussed in the course of the hearing. Reference was made to a note which suggested that in answer to a question from the chairman about contributory fault the agent for the applicant maintained that he had not hampered the investigation. Reference was made to a further point at which the agent for the applicant is recorded as having stressed that the applicant had contributed fully, "perhaps overzealous, but attended all meetings ... ". The chairman is then said to have made a reference to the fact that the applicant did not produce papers in August 2003. At other points reference appeared to have been made to the "harshness" of letters written by the applicant to Mrs. Johnston and to evidence by her that she had felt "bullied". Other references referred to the potential effect of contributory conduct on reinstatement. Counsel's position (which we think cannot be disputed) was that, if accurate, it appeared not only that the question of remedy, including the question of possible contribution, was the subject of discussion and submission on the final day, but also that the question, inter alia, of the withholding of documents and the tone of complaints had been raised in that connection, both matters which later featured strongly in paragraph 25 of the decision. Mr. Cleland stressed that evidence relating to the applicant's conduct had been necessarily bound up with evidence of the course of the investigation into his complaints, which was central to the question of whether he could be said to have been unfairly dismissed at all. This was not a case, apparently like Mercia Rubber Mouldings Limited v Lingwood, where the applicant had not been given the opportunity to lead evidence in relation to possible contributory conduct.

[21 ] If the issue between the parties had remained as we have rehearsed it above, a real question would have arisen as to whether the applicant had said enough at least to justify a remit to the Tribunal for further information as to what transpired on the last day. Matters, however, did not rest on that basis. Instead, on the last day of the hearing of the application, the applicant's position appeared to change. Although he was not to be taken as accepting the accuracy of, at least, the detail of the transcript, we understood him to accept that the question of remedy, including possible reinstatement and compensation, under reference inter alia to the terms of sections 122 and 123 of the 1996 Act, and the question of possible contribution, had indeed been the subject of discussion and submission on the last day. This, we note, would be entirely consistent with his earlier acceptance that the letter from Angus Council had been read to the Tribunal on his instructions. He maintained, however, that any such discussion or submission was "superficial" only. He had in particular not had specific proposed findings, or percentage deductions, put to him for his comment.

[22 ] In our view, the position ultimately adopted by the applicant (faced with the apparent detail of the transcript) does not provide a sufficient basis to justify any kind of further remit to the Tribunal. It no longer reveals any material difference between the parties as to what took place. It can no longer be suggested that the applicant was given no opportunity to be heard on the question of remedy. It cannot even, we think, having heard the applicant, be said that there is any realistic prospect that it could be said that he, represented at all times by a solicitor, was given no reasonable chance to respond to submissions made on that matter, including the question of possible contribution. The last day of the hearing was, it has to be remembered, one at which it would be expected that submissions would be made for consideration by the Tribunal, not one at which specific proposed findings would be made.

[23 ] In all the circumstances we refuse the application for leave to appeal.

[24 ] We would only add that the Tribunal's disposal of the question of remedy might, on the face of it, be thought to have been harsh in all the circumstances, and we well understand that the applicant has been left with a clear sense of grievance. The degree to which there should be any deduction from compensation, however, was a matter entirely within the discretion of the Tribunal and this court could not interfere unless it could be said that the decision was one which no reasonable Tribunal could have made (see e.g. Hollier v Plysu Limited 1983 IRLR 260). The applicant himself did not seek to argue that that could be said in this case.